Beruflich Dokumente
Kultur Dokumente
No. 13-1533
(D.C. No. 1:12-CR-00417-PAB-1)
(D. Colorado)
v.
ALBERT JESSE GALLEGOS, JR.,
Defendant - Appellant.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Defendant Albert Jesse Gallegos, Jr. pleaded guilty to one count of being a felon
district court sentenced him to 78 months in prison, and Mr. Gallegos filed a timely
appeal. Mr. Gallegoss counsel has filed an Anders brief and a motion to withdraw
as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). Exercising
jurisdiction under 28 U.S.C. 1291, we grant counsels motion to withdraw and
dismiss the appeal.
I.
BACKGROUND
possession charges, the district court first explained there was no way to know
when Mr. Gallegos would have been sentenced in state court if the federal
government had asserted primary jurisdiction, and consequently no way to know
how many months of his sentence would have been credited against his federal
sentence. But, even assuming all 13 months would have been credited, the district
court stated it would not grant the variance due to Mr. Gallegoss extensive
criminal history and dangerousness.
The district court sentenced Mr. Gallegos to 78 months in prison, a sentence
near the top of the applicable guideline range. It entered final judgment on
December 19, 2013, and Mr. Gallegos timely appealed. Counsel for Mr. Gallegos
then filed an Anders brief, indicating that there are no nonfrivolous issues for
appeal.
II.
DISCUSSION
Gallegos did not raise any objections to the presentence report or to the district
courts calculation of the applicable guideline range. The district court afforded
Mr. Gallegos a meaningful opportunity to allocute, recognized the advisory nature
of the guidelines, and explained the reasons for the sentence imposed. Nor is there
anything in the record to suggest that the sentence is substantively unreasonable. It
was not arbitrary, capricious, whimsical, or manifestly unreasonable, United
States v. Sells, 541 F.3d 1227 (10th Cir. 2008), for the district court to refuse to
speculate about when Mr. Gallegos would have been sentenced by the state if the
federal government had exercised primary jurisdiction. And the district court
explained it was persuaded not to grant the variance based on Mr. Gallegoss
extensive criminal conduct, which was ongoing at the time of arrest and involved
loaded weapons. Finally, the parallel state and federal felon-in-possession
prosecutions do not violate the double jeopardy clause because they involve
offenses against two separate sovereigns. See Rinaldi v. United States, 434 U.S. 22
(1977).
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III.
CONCLUSION
Based on our independent review of the record, we conclude that the issues
identified by counsel are wholly without merit. Accordingly, we GRANT the
motion for leave to withdraw and DISMISS the appeal.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
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